Law

Judge Denies Habeas Petition Of Afghan Shopkeeper At Guantanamo

Photo: Brennan Linsley/AFP

On Friday September 3, in the District Court in Washington D.C., Judge John D. Bates handed another victory to the government in its ongoing effort to continue holding insignificant prisoners at Guantánamo, when he denied the habeas corpus petition of Shawali Khan, an Afghan prisoner. Khan was accused of providing assistance to members of Hezb-e-Islami Gulbuddin (HIG), an anti-US militia headed by the Afghan warlord Gulbuddin Hekmatyar (who, ironically, had received the lion’s share of US funding as a leader of the Afghan resistance to the Soviet occupation in the 1980s, which was channeled to him by the Pakistani authorities who championed his cause).

Nineteen Afghans are still held in Guantánamo, following the release of around 200 others over the last eight years, and Friday’s ruling was the first in the case of an Afghan, and the 16th victory for the government, in the two years since the first habeas ruling took place. The ruling was part of a process that has, to date, resulted in judges granting a significantly larger number of petitions. 38 prisoners have won their habeas petitions, although, as the Obama administration seems to delight in dragging its heels, or appealing successful petitions, 13 of these 38 men are still held, and a 14th recently had his successful petition reversed on appeal.

Judge Bates’ unclassified opinion has not yet been released, so it is impossible at present to know what evidence he relied on to make his judgment, but the decision is particularly shocking because, last year, after reviewing the classified evidence against Khan, Judge Bates declared that all of the allegations came from reports containing “multiple levels of hearsay,” that “all of the information contained in the reports could come from a single individual,” and that “no source is identified by name.”

This alone made the government’s case look flimsy, but it is not the only reason to doubt the outcome of Friday’s ruling. Over the last two years, Khan’s attorney, Len Goodman, a lawyer in Chicago, has pieced together his client’s story, and has also conducted research in Afghanistan to establish that he was not involved in insurgent activities against US forces.

The story of Shawali Khan, a shopkeeper from Kandahar

Goodman agreed to represent Shawali Khan in mid-2007. However, because it takes at least six months for attorneys or translators to receive security clearance to visit Guantánamo, he was not cleared to visit Khan until the summer of 2008. His first visit to his client took place in the fall of 2008. Goodman described Khan as “a small man with sad eyes … who comes from a small farming village near Kandahar, Afghanistan,” and is now in his mid-40s. Over the course of his visits he established Khan’s story, describing it in an article in the US magazine In These Times (in September 2009) and also in an article on his website last month.

As Goodman explained, “In 2000, there had been a drought on the farm and Khan had moved with his father and brother to Kandahar City where they opened a shop selling petrol products. When US forces invaded Afghanistan in 2001, Khan continued to run his oil shop and even worked, for a short time, for the Karzai government as a driver.”

However, on November 13, 2002, while riding his motorcycle from his home to the market, he was seized by Afghans working for Gul Agha Sherzai, the US-backed governor of Kandahar, who had assisted US forces in seizing Kandahar from the Taliban in November 2001, but had then established a regime that was noted for its corruption. According to Goodman, the men who seized Khan told US officials that he was “a terrorist, plotting against US interests in and around Kandahar.” He added, “It is almost certain that the US paid a bounty to Khan’s captors but this cannot be confirmed because, while the US admits paying large cash bounties to warlords who turned in ‘al-Qaeda and Taliban fighters,’ it has refused to release any of these files.”

Goodman also explained that, “around the time of his capture, one or more Afghan informants told US intelligence officials in Kandahar that Khan was an active member of a local insurgent group that was plotting to bomb Americans in and around the Kandahar region.” However, “The US intelligence officer did not bother to record the informant’s name or whether he was paid a bounty. Nor did he inquire how the informant acquired his information or whether the informant is a credible person or a criminal. Nor did the official attempt to corroborate the allegations against Khan before sending him off to the newly built prison at Guantánamo.”

This, sadly, is typical of the Guantánamo cases (and is a pattern that was repeated again and again with the Afghan prisoners at Guantánamo). However, although it is understandable that administrative details can be missed in the heat of war, a more fundamental problem, identified by Goodman, is that US forces repeatedly demonstrated that they had made no attempts whatsoever to ascertain whether their sources were reliable.

In Khan’s case, the allegations, as presented in a military review board in September 2005, were that in September 2002 he was directed by HIG commander Zabit Jalil “to carry out a terrorist operation targeted at US military personnel located at Gecko base, Kandahar,” that he delivered “a radio-controlled binary detonation device and two blasting caps” to a HIG operative in November 2002, that he tried to purchase rockets in September 2002, that he undertook military and explosives training at a HIG camp in Pakistan, and that after his arrest tanks, rockets and guns were found in his family orchard, and that he was “found with a 50m spool of detonation cord.”

As I explained in a profile of Khan last year:

This was a fairly comprehensive list, but the allegations seem to have been based on the fact that Zabit Jalil was his uncle (his mother’s brother). Khan denied all knowledge of his uncle’s activities. As far as he was concerned, Zabit Jalil worked for the Karzai government, and he told the tribunal that he (Khan) had also worked for the government “for a while” as a driver. In a personal statement, he said, “the Afghans caught me and took me to the Americans. I talked to the Americans and I showed them my house and I showed them my shop. Those Afghan people took my money and my motorcycle and gave me to the Americans.” He explained that a list of weapons that was in his possession at the time of his capture was a receipt, given to him by his uncle, because all weapons had to be accounted for to the Karzai government, but he repeatedly denied knowledge of the alleged weapons cache in his orchard. He also said that the Afghans gave him “a hard time” in Kabul, but that the Americans had treated him better. He suggested that “the intelligence people, the reporters, or spies … were capturing everybody to give them to the Americans for money.”

As I also explained:

As with many other stories, it would have made sense for the US military to try and contact the Afghan authorities in the Kandahar area, to find out whether Zabit Jalil had in fact been working for the Karzai government, but as usual there is no evidence that any attempt was made to conduct even the most rudimentary investigation of Khan’s story.

Khan’s attempts to secure justice in a US court, despite being cleared for release on two occasions

After he was seized, Khan was taken by US forces to the prison at Bagram airbase, where, as Goodman described it, “he repeatedly told his interrogators that he and his family had an oil shop in Kandahar and were not enemies of the Americans.” Although the interrogators wrote in their reports that Khan “appeared honest,” he was sent to Guantánamo in February 2003, where he had to wait for over four years before he was assigned a lawyer. Last month, Len Goodman helpfully summarized Khan’s attempts to secure justice via the US courts, in a sequence of events that reveals obstruction on the part of the government, and evident confusion, as he was twice declared cleared for release, but was not actually freed:

By far the most frustrating part about representing a Gitmo detainee is that there is so little lawyers can do for their clients. In June 2008, right after Boumediene [v. Bush, in which the Supreme Court reasserted that the Guantánamo prisoners had habeas corpus rights], I filed a habeas corpus petition in the D.C. District Court demanding an evidentiary hearing and Khan’s release. During my first visit in the fall of 2008, I excitedly told Khan about this petition and about the great writ of habeas corpus. Khan informed me that the guards had recently told him that he was cleared for release and would soon be going home to Afghanistan. He had even been visited by representatives of the Red Cross to help prepare him for the journey. This was news to me, but about a year later, the government lawyers finally disclosed that Khan had in fact been cleared for release but that decision had been revoked.

During my second visit, in January 2009, I again told Khan about the virtues of habeas corpus. I explained that his case was pending before a real federal judge and that he would have a real hearing where the government would have to produce real evidence to justify his continued detention (unlike the Mickey Mouse CSRT hearings Khan had already received at Gitmo). I further explained that Khan would have an opportunity to testify at his hearing via video conference. Khan agreed to participate and requested that this hearing be held as soon as possible. I promised to push the judge for the earliest hearing date.

During my next visit in mid-2009, I had to explain to Khan that the Court had granted the government’s request for a stay of all habeas proceedings while it conducted a new search through archived intelligence files for additional evidence against Khan. Khan was angry and frustrated. The fact that I shared his frustration did not comfort him.

That fall, the Court finally set Khan’s case for a merits hearing. I wrote to Khan to tell him the good news. But then, in December, the government again successfully moved, over my strenuous objection, to stay the merits hearing on the grounds that Khan had again been “cleared for transfer” at some future date unspecified. In January 2010, I visited Khan for the fourth time and delivered the bad news that his hearing had again been postponed. (Shortly after this visit, Khan fired me but then later agreed to let me represent him at his hearing.)

In February 2010, the Court lifted the stay and reset the merits hearing, acknowledging perhaps that the government was merely stalling for time. On May 13, 2010, Khan’s hearing commenced, closed to the press and the public.

The government produced no live witnesses at the merits hearing. Instead, it offered classified documents from US intelligence officers reporting that certain unidentified Afghan informants had named Khan as an anti-US insurgent. In response, the defense offered nine sworn declarations from Khan’s family and neighbors, all of which refuted the charge that Khan was a terrorist. The defense also presented the live testimony of a professor and expert on Afghan terror groups and the published memoir of a US journalist who had lived in Kandahar during 2002, each of which supported the defense claim that the allegations against Khan were fabricated by bounty hunters.

As Goodman also explained, “The only other detainee at Guantánamo from the Kandahar region was shown Khan’s photograph. He told his interrogators that Khan ‘was a shopkeeper who sold gasoline in Kandahar’ and was not a terrorist.”

On May 17, seven and a half years after his capture, Shawali Khan was finally able to tell the court, through a secure and encrypted video link, that “he was a shopkeeper and not a terrorist or enemy of the United States,” but his testimony — and the evidence provided by his witnesses — was obviously in vain, because, on Friday, Judge John D. Bates denied his habeas corpus petition, assigning him to endless, ongoing detention at Guantánamo on an apparently legal basis.

Apart from the fact that it remains insupportable that the justification for holding prisoners at Guantánamo — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks — allows prisoners of war to be held at Guantánamo, and not in a prisoner of war camp, with the full protections of the Geneva Conventions, Judge Bates’ ruling appears to be unsupported by the facts. Perhaps, as in the case of a Yemeni prisoner last summer, he decided that, although the government’s evidence was “gossamer thin,” it was sufficient to endorse the ongoing detention of man who had twice been cleared for release — once by a Bush-era military review board, and once by the Obama administration’s Guantánamo Review Task Force.

I must admit, however, that this strikes me as unlikely. As someone close to the case explained to me over the weekend, when I asked if there were any compelling reasons to doubt the government’s story, “Yes, Shawali Khan’s defense team had nine affidavits from his rural village and from Kandahar where he drove for the Karzai government before he supposedly started an HIG cell in an area hundreds of miles from any HIG cells.”

Originally published on Cageprisoners.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

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